The Surrogacy Bill: What it Says and What It Doesn't

Shannon Mathew

In 2002, commercial surrogacy was legalized in India. Over the next decade, the industry grew tremendously, estimated to be a $2 billion a year business. However, a number of incidents between 2002 and 2015 highlight the absolute disregard for the rights of the surrogate mother and child, the lack of comprehensive laws related to surrogacy, and the exploitation of loopholes within the already existent ones.

Consider the case of Baby Manji Yamada in 2008. In 2007, a doctor working at an infertility clinic in Gujarat, arranged for a Japanese couple to have a child through surrogacy. The surrogate mother was impregnated using a mix of the father’s sperm and an anonymous Indian woman’s egg. However during the course of the pregnancy, the couple filed for divorce, and there were no laws in place which covered whose child the baby would be; the women who donated the egg or the surrogate mother or the father. In the wake of this, a petition was also filed against the doctor stating that he was running a child trafficking racket by taking advantage and making money off the lack of surrogacy laws. The case of Baby Manji was resolved when her grandmother took her in, but by then the question of the ethical violations of the booming surrogacy industry had already entered the public arena.

In another instance, in 2012 an Australian couple had twins by surrogacy, but took only one home rejected the other. Then there was the case of a single mother from Chennai who opted to becoming a surrogate in the hopes of using the payment to start a shop of her own; however, she received minimal financial remuneration as the autowallah who acted as the middleman took 50% of the cut. In 2014, a 26-year-old woman died after complications from a surgical procedure to harvest eggs from her body, as part of an egg donation programme at a private clinic in New Delhi.

In addition to the series of PILs that emerged which sought to ban commercial surrogacy, the 228th report of the Law Commission recommended prohibiting commercial surrogacy and allowing altruistic surrogacy. The exploitation of women who became surrogates due to a paucity of employment options, and the easy abandonment of the children born under these situations led to the Union Cabinet approving the Surrogacy (Regulation) Bill of 2016, which effectively banned all forms of commercial surrogacy. Altruistic surrogacy refers to an arrangement between a couple and a surrogate without any transfer of funds, except for the payment of medical expenses. Altruistic surrogacy is practiced in some centres in India, but a majority of centres are primarily for commercial surrogacy.

Though the intent of the bill was to curb the exploitation of women, there seems to be more wrong with it than right. It shows a shallow understanding of how to deal effectively with issues, where outright prohibition is chosen as a solution, as opposed to delving deeper into the intricacies of the problem and instituting issue-specific policies and regulation. The medical community, and even some factions of the general public have criticized the bill for being discriminatory and draconian even while it has been understood as necessary in curbing the ‘baby-making industry’. The health minister has said that the bill is open to improvements, but the clauses detailing the exploitation of the surrogate mother and child will not be compromised on.

While the bill bans commercial surrogacy and institutes heavy penalties and jail time for establishments found indulging in it, it also heavily regulates the conditions that a couple must fulfill to be able to opt for surrogacy. The couple must have been married for a minimum of 5 years, and at least one of them proven infertile. The couple must have Indian citizenship, with the female aged between 23 and 50, and the male between 26 and 55 years. Due to these strict conditions, homosexual couples, single parents, unmarried couples and couples with children (biological, adopted or surrogate) do not qualify for surrogacy under the new bill.

The bill also heavily regulates the role of the surrogate. For a women to be a surrogate she must be an ‘altruistic relative’ which means she must be a close relative of the couple and must be between 25 and 35 years of age. She can also act as a surrogate only once in her lifetime. The child born through surrogacy will have all the rights of a biological child.

There has been extensive debate on the stringent criteria the couple and surrogate mother must meet in order to go through with the surrogacy. The necessity of the surrogate being a relative and then being a surrogate only once severely limits the options the couple has, with adoption being the only other alternative. A reason given for these strict conditions has been for the promotion of adoption, but that itself comes with a whole slew of problems. Adoption regulations are themselves equally stringent (again, excluding single men, and various other kinds of atypical family set-ups), and processes are hardly streamlined, among other issues. Adoption, then, is hardly a plausible alternative.

Another point of contention is the issue of the surrogate’s consent. After the boom in the industry post-2002, surrogacy came to be stable source of income for many women. If a woman willingly consents to being a surrogate, is assured of a safe medical environment and the child is assured of a safe home, then why should commercial surrogacy be banned outright? Of course, exploitation is a continuing threat and a legitimate issue, akin to the threat of exploitation in the case of sex work. But, like sex work is recognised, regulated in many countries and sex workers given full constitutional rights, surrogacy laws should be put in place to regulate policies and not to institute a blanket ban. Laws need to be implemented in a way that the rights, livelihoods, and decision-making power of those most vulnerable are protected.

One of the most criticized aspects of the bill is the prohibition of anyone other than a heterosexual married couple opting for surrogacy. To exclude single parents, or couples who do not fit a hetero-normative mold, furthers a patriarchal understanding of what constitutes the ‘ideal’ family, and, in other ways, further embeds homophobia into our legal system.

We need to accept that these issues are never black or white, nor can they ever be, and that it’s about time we learn how to navigate this grey expanse. It is hard to paint commercial surrogacy as 'evil' or 'bad' when it does benefit some people and is often the sole option available for both couples and surrogates. Similarly, altruistic surrogacy at its core is non-exploitative but still proves to be extremely restrictive. Some key points to keep in mind are the benefits of restructuring versus outright banning, and the question of consent versus exploitation. If one if able to assess these issues pragmatically, then the solutions that are offered may truly have positive on-ground impact.